Heffner v. White
| Decision Date | 22 December 1942 |
| Docket Number | 17033. |
| Citation | 45 N.E.2d 342,113 Ind.App. 296 |
| Parties | HEFFNER et al. v. WHITE. |
| Court | Indiana Appellate Court |
Kenner & Glenn, of Huntington, for appellants.
Todd & Craig, of Indianapolis, for appellee.
This is an appeal from an award of the majority members of the Industrial Board, granting appellee compensation for injuries allegedly arising out of and in the course of his employment by the appellants.
The undisputed facts, except for some details which are later set out, are briefly these: The appellants are husband and wife and at the time of the accident to the appellee, owned a farm of approximately 85 acres, and held title thereto as tenants by the entirety. There was an old summer kitchen and a wood house adjacent to the dwelling at the time the farm was purchased by appellants, and which appellant John Heffner had caused to be moved into the barnyard during the summer of 1941, and placed on a foundation. A short time before moving to the farm, John Heffner owned a building in the town of Andrews, Indiana, in which he carried on a restaurant business, and in the conduct of which his wife assisted him. About two weeks before the accident involved herein, the appellants moved to the farm. All the tillable ground was rented out by fields, and the appellant John Heffner reserved only such acreage as was necessary for his cows and hogs. The milking of his cows, selling some of the milk, and the care of his hogs, according to the testimony of John Heffner, was his only occupation after he moved to the farm.
Appellee who also resided in the town of Andrews, had been engaged in the carpentry business for a considerable time before the date of the accident, but he maintained no shop or office. People called on him from time to time to do odd jobs of carpentry. He did a little work for appellant John Heffner during the summer of 1941 in patching a hole in the sidewalk on the restaurant premises where a coal chute had been located. Mrs. Heffner testified that her only occupation at the time of the accident was that of a housewife.
On October 27, 1941, the appellant John Heffner contacted appellee and discussed with him the remodeling of the old summer kitchen and wood house for use as a hog house. The work contemplated was putting in a cement floor and lowering the building by cutting off 11 to 13 inches of the bottom thereof immediately above the foundation. It was estimated that the contemplated alteration would take the time of two men for a period of four days to a week. Appellee inspected the job and agreed to do the work on condition that the appellant John Heffner would help him. Said appellant borrowed some jacks on advice of the appellee, and work was begun on said building on October 28, 1941, the cement floor being first laid, after which some work was done in cutting off the bottom of the building. On October 29, 1941, appellee was working alone while Mr. Heffner attended to the farm chores. Either on that morning or on the evening before, some of the jacks had been put in place and were supporting a portion of the building. After finishing his chores, Mr Heffner went to the building, and shortly thereafter and while appellee was on the inside, the jacks suddenly kicked out and the building collapsed. Appellee was pinned under the collapsed building, and as a result suffered two broken vertebrae, five fractured ribs and an injury to his abdomen.
Appellants first contend that the evidence clearly establishes that if appellee was an employee at all, he was one whose employment was both casual and not in the usual course of the business or occupation of the employer, and therefore is barred from recovery by Section 40-1209, Burns' 1933, Section 16385, Baldwin's 1934. Section 40-1209, Burns' 1933, Section 16385, Baldwin's 1934, provides that the Workmen's Compensation Act shall not apply to casual laborers as defined in Section 40-1701, Burns' 1933, Section 16449, Baldwin's 1934 * * * or to employers of such persons unless such employers give notice of their election to be so bound. Section 40-1701, Burns' 1933, Section 16449, Baldwin's 1934 provides that the term "employee" as used in the Workmen's Compensation Act shall be construed to include every person, including a minor, in the service of another, under any contract of hire or apprenticeship, except one whose employment is both casual and not in the usual course of the trade, business, occupation or profession of the employer. It is therefore apparent that if appellee's employment was in the usual course of the business or occupation of either of the appellants, then his employment is within the provisions of the Workmen's Compensation Act entitling him to compensation, notwithstanding the fact that his employment might be determined to be casual.
This pronouncement is fully sustained by the following authorities: Caca v. Woodruff, 1918, 70 Ind.App. 93, 123 N.E. 120; Olsen v. Canter, 1931, 93 Ind.App. 150, 176 N.E. 27; Wagner v. Wooley, 1926, 85 Ind.App. 259, 152 N.E. 856; Barker v. Eddy, 1933, 97 Ind.App. 94, 185 N.E. 878; J. P. O. Sandwich Shop, Inc., v. Papadopoulos, 1938, 105 Ind.App. 165, 13 N.E.2d 869; Kunkler v. Mauck, 1940, 108 Ind.App. 98, 27 N.E.2d 97.
In the case of Caca v. Woodruff, supra, the employer, who was engaged in the milling business, employed a carpenter to make repairs to his mill. In deciding whether or not the carpenter was a casual employee, the court held that since additions and repairs to buildings and machinery are necessary to the proper conduct of the milling business, the construction of additions and repairs is employment in the usual course of the employer's business.
In the case of Olsen v. Canter, supra, it was held that painting business rooms which were to be occupied by a merchant in operating a dry goods and grocery store was employment within the usual course of the employer's business.
In the case of Wagner v. Wooley, supra, it appears that the owners of a garage employed one Wooley to assist in the construction of an outside toilet to said garage. The court held that the toilet, which was constructed for the use of appellants' employees and customers was reasonably necessary in the operation of a public garage, and therefore the work of said construction was employment in the usual course of appellants' business within the meaning of the Workmen's Compensation Act.
The hog house on which appellee was working at the time of his injury was to be used by said appellant in caring for his hogs, and was, therefore, reasonably necessary to the proper conduct and prosecution of John Heffner's business. In view of the facts and the reasoning set forth in the foregoing authorities, we are of the opinion that the work of the appellee in remodeling the building here involved was employment in the usual course of the employer's business.
Appellant argues that if appellee's employment was in the usual course of his employer's business, then it necessarily follows that appellee was a farm or agricultural employee, and is, therefore, precluded from recovery by Section 40-1209 Burns' 1933, Section 16385, Baldwin's 1934, which excludes farm and agricultural employees from the benefits of the act. With this contention we cannot agree. One engaged in the business of farming, either generally or in a limited way, is frequently required to employ laborers who are not and cannot be classified as farm or agricultural employees. In the case of Makeever v. Marlin, 1931, 92 Ind.App. 158, 174 N.E. 517, the court approved the following language of the case of Peterson v. Farmers' State Bank, 1930, 180 Minn. 40, 230 N.W. 124;
The court, in the Peterson case, supra, also said:
Whether a laborer is or is not a farm employee is determined from the character of the work he is required to perform, and not from the general occupation or business of the employer. Hahn v. Grimm, 1935, 101 Ind.App. 74, 198 N.E. 93; Dowery v. State, 1925, 84 Ind.App. 37, 149 N.E. 992. Appellee was not employed to do general farm work, but was employed to exercise his skill as a carpenter, and the fact that he was employed to remodel a farm building does not change the character of his work from carpentry to farm labor.
Appellants next contend that it appears from the evidence that appellee was an...
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